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- The basic principle of access and equity is that no client of the Court should be disadvantaged in proceedings before the Court or in understanding the procedures and conduct of court business, because of a language barrier or hearing or speech impairment. The two-way process of communication and understanding between the client and the Court may require that the Court engages an interpreter, or on rare occasions a translator.
- The Court will meet the costs of interpreter services for persons where it considers that if such services were not provided, the person/s would be disadvantaged in their business with the Court because they do not speak or understand the English language or they are deaf, hearing impaired and/or speech impaired. In addition, the Court has a responsibility to consider the interests of other parties which may be involved in litigation who may be disadvantaged if another party does not have access to the interpreter services they require.
- The assessment of the need for interpreter services will generally be made with reference to the person's own assessment of their need for assistance. For example, while a person may have some level of understanding of English, there may be a need to provide interpreter assistance to ensure that the person understands all aspects of the information/proceedings related to their case. In addition, in a situation where a person may be over confident of their ability to understand English and there is some reasonable doubt about their real level of understanding, language assistance should be provided.
- The Court will provide interpreter services in the following circumstances:
- the person does not have legal representation and the costs of interpreter services are not met by any other party to the proceedings and the person is unable to personally meet the costs of providing an interpreter;
- where a person has legal representation, but is unable to meet the costs of providing an interpreter themselves or the costs are not met by any other party,
* Such persons would include those who:
- are or would be entitled to an exemption from or reduction of Court fees under the Court’s Regulations
- are represented under a recognised pro bono scheme or similar arrangement (even if they are not exempt from payment of court fees or have not had those fees reduced): or
- Interpreter services will be provided in relation to the following Court processes:
- Attendance at Counter: Where a client at the counter appears to need assistance in understanding procedures or information, registries are encouraged to use the services of a staff member who is familiar with the client's first language. Where this alternative is not available or the client needs urgent assistance, registries may assist the client through the provision of an interpreter at court expense. It may be that initial contact with the interpreter can be made satisfactorily by telephone.
- Attendance at dispute resolution or child dispute services events ordered by the
court: Where needed to meet the objective in paragraph 1 above, an interpreter should be authorised for dispute resolution or child dispute services events ordered by the Court. It is not considered appropriate for a friend to interpret during counselling or dispute resolution, because the friend may not be independent from the dispute.
- Defended Hearings: The registry manager or district registrar is to ensure where practicable that neither the client of the Court, nor the Court shall be disadvantaged by the lack of interpreter services. Once the hearing has started, the judge or registrar is ultimately responsible for the decision as to whether an interpreter is needed. If the judge or registrar determines that an interpreter is no longer required during the course of the proceedings, he/she should formally discharge the interpreter on the record.
- The Court's responsibilities do not extend to ensuring that a litigant or client of the Court is able to effectively communicate with her or his solicitor, and the Court should not pay for an interpreter for this purpose.
- Undefended Divorce Proceedings: The assistance of a friend should be suggested and should be sufficient for these proceedings.
- The decision about whether the costs of interpreter services will be met by the Court will be made by either the Registrar (or another delegated registry officer) of the Registry with control of the case, the Registrar hearing a proceeding or any aspect of a proceeding or the Judge hearing the case.
- The Court will pay for interpreters assessed to be essential, when their engagement is authorised and booked by court staff. The Court will not pay for an interpreter booked by a barrister or solicitor, nor for a preferred interpreter selected by a solicitor in addition to an interpreter provided by the Court. Unless particular circumstances apply to the contrary, the Court will only book one interpreter where the parties are from the same ethnic background. Every endeavor should be made to obtain the services of an interpreter who is independent from either of the parties.
- Where it has been determined that the Court will meet the costs of an interpreter service, the Court will make the necessary arrangements for engaging an interpreter. The Court will usually only accept interpreters who are accredited and registered with the National Authority for the Accreditation of Translators and Interpreters (NAATI). In addition, the Court will generally prefer accreditation to a minimum standard of NAATI Level 3. It is acknowledged, however, that for a number of languages Level 2 accredited interpreters are the only ones available and in the circumstances this is acceptable. Note: the NAATI Internet Web site includes the Directory of Accredited and Recognised Practitioners of Interpreting and Translation www.naati.com.au
- The Court may access interpreter services from any source which is considered to be cost-effective, including from a tendered service. An interpreter engaged by the Court shall be engaged for an estimated fixed period of time but shall be paid only for time worked with a reasonable travel component. Where it is necessary to extend the engagement beyond the initial booking time, a second estimated period of time should be fixed. Booking officers should have regard to minimum and/or penalty charges imposed by agencies in selecting the most cost-effective booking period.
- An interpreter shall complete documentation stating the starting and finishing times of their engagement before leaving the Court precincts.
- In cases where a non-NAATI accredited interpreter is required, eg. an accredited interpreter for the required language is unavailable, the Court will consult as appropriate and employ interpreter services at its discretion. Note: this situation may apply to circumstances where the need for interpreters for Aboriginal languages has been identified.
- The Court only permits an accredited interpreter to provider interpreter services (except for undefended divorce proceedings), except in exceptional circumstances where no accredited interpreter is available for the language required. This applies to both court funded interpreters and interpreters organised and funded by parties.
- The Court (ie the Judge, Registrar or their delegate) retains the discretion to determine whether an interpreter is acceptable for the circumstances for which they have been employed. For example, the services of an employed interpreter may be terminated if the Court judges that he/she is unable to effectively interpret the relevant proceedings of the Court.
Deaf, Hearing Impaired and/or Speech Impaired
- The provision of interpreter services for this group of clients is specifically authorised by these guidelines.
- Arrangements should be made for AUSLAN interpreters or CART (Communication Access Real-time Translation) service providers to assist clients at any event outlined in paragraph 2, who are deaf, hearing impaired and/or speech impaired.
- The TTY service should be used for all telephone communication for those clients who are deaf, hearing impaired and/or speech impaired.
- At least one courtroom at each registry should have a hearing loop installed, and arrangements should be made to assist clients by using this facility wherever possible.
- It is the responsibility of parties to provide accredited translated copies of foreign documents to the Court. In exceptional circumstances where the Court determines that it is in the interests of the Court to obtain a translation of a document to assist in a defended hearing, this should be authorised by a judicial officer, and can be arranged and funded in the same way as interpreter services. The Court may receive correspondence in a foreign language from a litigant or potential litigant, unless this correspondence clearly fits the category of "nuisance mail". It is the Federal Circuit Court's obligation to meet the cost of translation, in accordance with the basic principle of access and equity in paragraph 1.2 above. Where there is doubt as to the relevance of, and necessity for a full translation, a general translation may be obtained, which would enable the responsible officer to then decide what further action should be taken.
Indigenous Clients in Remote Locations
- Where indigenous clients are referred to community-based organisations for dispute resolution in remote locations, the following policy in relation to the use of non-accredited interpreters shall apply:
- Where accredited interpreters cannot be accessed by telephone or on site, suitable members of the community should be engaged as non-accredited interpreters.
- The rate of payment for non-accredited interpreters is set at 75% of the rate set for accredited indigenous interpreters provided by the Language and Cultural Centre, Alice Springs or other relevant provider of indigenous interpreter services.
- Before the services of a non-accredited interpreter are contracted, staff should be satisfied that the person has a clear understanding of their role and the requirement to have no conflict of interest in the case at hand; to keep the matter confidential and only interpret what is said in the course of the interview or community consultation. They should also agree not to advocate for any party.
- Where client interviews are being conducted with the assistance of a non-accredited interpreter all parties must agree to the interpreter being used.
Registry Managers – Responsibilities
- Each registry manager or district registrar should designate in writing the officers who have authority to contact an agency on behalf of the court to book the services of an interpreter. The registry manager or district registrar is required to ensure that proper and efficient booking procedures are in place, together with effective acquittal and accounting procedures, and shall ensure that early notification of cancellation of interpreter bookings is in place.
- Where an interpreter is booked, but the appointment or hearing does not proceed or the client does not attend the event, and the court is not advised, the Court may, at its discretion, seek to recover the amount paid to the interpreter from the client's legal representative or from the client.
Feedback and Complaints
- Registries should establish a feedback mechanism to ensure that clients of the Court are assisted by high calibre interpreters. Some agencies have feedback forms and these should be used as far as possible. Dispute resolution staff and judicial officers should be encouraged to provide feedback to the service agency either through e-mail to the Registry booking officer or via a feedback form.
- Where a complaint is made concerning the calibre or use of interpreter services, the complaints officer should handle the complaint in accordance with standard complaints handling procedures.
Linguistic Availability/Performance Allowance
- This allowance is available to staff who have a sufficient level of community language skills to assist clients at the counter. Each registry should maintain an up-to-date list of officers in receipt of the allowance, as an addendum to the registry telephone directory. There is, of course, no difficulty with arrangements being made for a staff member who is not qualified for the allowance to provide assistance in answering inquiries.
Inquiries concerning this Policy
- Inquiries should be directed to the registry manager or district registrar in the first instance.